Defining Incompetence

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Faculty members at Brooklyn Law School are torn over what the expansion of adequate causes of termination for tenured professors means for their job security: Is it a harmless change, or does it lay the groundwork for layoffs down the road?

The Board of Trustees recently adopted “demonstrated incompetence” to the list, defining it as “multiple unsatisfactory performance reviews or complaints from supervisors; multiple complaints from students or multiple unsatisfactory student evaluations; [or] sub-standard academic performance.”

Bloggers say the change could threaten academic freedom at the law school school -- especially since the definition of demonstrated incompetence also includes exhibiting a “lack of collegiality,” a criterion the American Association of University Professors has vocally opposed as a factor in performance evaluations.

Brian Leiter, a professor at the University of Chicago Law School who runs Leiter Reports, said in a blog post that it is alarming the language equates demonstrated incompetence with "wholly unreliable and disreputable criteria like students evaluations [and] complaints from supervisors."

"[P]oor teaching evaluations from students do not constitute demonstrated incompetence -- for reasons the enormous empirical literature on teaching evaluations would make clear, quite apart from AAUP norms," Leiter wrote.

One professor at the law school, citing concern about her job security, said the vague language is problematic is its current form.

“I think that’s way too broad,” the professor said. “It’s certainly open to interpretation that would cause one to worry about academic freedom and personal, subjective views.”

Other faculty members said their colleagues are jumping to conclusions. Roberta Karmel, Centennial Professor of Law, said it is premature to say if the new policy softens the criteria for termination.

“It depends on the lack of collegiality and how it has manifested itself,” Karmel said. She mentioned stories about faculty members who retired before she joined the institution in 1985 -- some of whom reportedly went to work armed -- as an example. “Is that a lack of collegiality? What the hell is that?”

Calling the addition of demonstrated incompetence a “long-recognized and widely accepted regulatory term supported by the AAUP and others," Dean Nicholas Allard said the updated language is meant to elaborate on what adequate cause actually means.

“Our regulations did not previously include any reference to ‘demonstrated incompetence’,” Allard said in a statement. “The definition that was also included in the new regulations provided additional language to clarify a potentially vague term.”

Stuart Subotnick, chairman of the Board of Trustees, presented the updated language during a faculty meeting Friday afternoon. But rather than fearing the updated language will be misused to terminate tenured faculty members, professors said they left the meeting confident in the faculty disciplinary hearing committee’s ability to further refine the definition.

“I think that there’s an ongoing effort to try and articulate what the standards for termination are -- really to make things less vague and up in the air,” Karmel said. “Maybe this isn't the final, correct phrasing, but it’s part of an ongoing process and effort.”

Although the disciplinary hearing committee does not have the power to make any changes itself, Chairwoman Ursula Bentele, professor of law, said Allard has asked her to bring the updated language to the committee and recommend changes to the board.

“Under our regulations, this committee assures that peers are responsible for performance review — an important safeguard of both due process and academic freedom,” Allard said. “I have full confidence that faculty peers will apply the standard fairly and in alignment with Brooklyn Law School’s tradition of outstanding scholarship.”

Personally, Bentele said she thought “having students and supervisors and lack of collegiality as sort of the heart of the definition is not the best way to define adequate cause,” and that the committee is likely to recommend peer reviews be given a more prominent presence.

Previously, the only way a tenured professor could have his or her contract terminated was by exhibiting gross neglect of faculty obligations -- such as repeatedly failing to teach class or grade -- or by violating laws and academic freedoms. Bentele said she was by no means opposed to expanding the definition of adequate cause.

“Frankly, I can’t really quarrel with the notion that somebody who has demonstrated incompetence would be subject to dismissal,” Bentele said.